(HC) Craig v. Dagostini ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NORMAN JOHN CRAIG, No. 2:20-cv-1012-EFB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JOHN DAGOSTINI, 15 Respondent. 16 17 Petitioner, a pro se inmate confined to the El Dorado County Jail, has filed a petition for a 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee. 19 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 20 petition if it plainly appears from the petition that the petitioner is not entitled to relief. After 21 reviewing the instant petition, the court finds that petitioner has failed to exhaust state court 22 remedies.1 The exhaustion of state court remedies is a prerequisite to the granting of a petition 23 for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion 24 requirement by providing the highest state court with a full and fair opportunity to consider all 25 claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); 26 Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 27 1 The court may raise the failure to exhaust issue sua sponte and may summarily dismiss 28 on that ground. Stone v. San Francisco, 968 F.2d 850, 856 (9th Cir. 1992). 1 Here, petitioner challenges a condition of probation imposed by the El Dorado County 2 Superior Court. Petitioner states that he has not appealed the sentence and has not sought review 3 of his claim in the California Supreme Court. ECF No. 1 at 5. Petitioner’s claim, therefore, is 4 unexhausted and the petition must be dismissed without prejudice.2 See Rasberry v. Garcia, 448 5 F.3d 1150, 1154 (9th Cir. 2006) (“Once a district court determines that a habeas petition contains 6 only unexhausted claims, . . . it may simply dismiss the habeas petition for failure to exhaust.”). 7 Accordingly, IT IS ORDERED that the Clerk of the Court shall randomly assign a United 8 States District Judge to this case. 9 Further, IT IS RECOMMENDED that: 10 1. Petitioner’s application for a writ of habeas corpus be summarily dismissed for failure 11 to exhaust state remedies; and 12 2. The Clerk of the Court be directed to serve a copy of any order adopting these findings 13 and recommendations, together with a copy of the petition filed in the instant case, on 14 the Attorney General of the State of California. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 20 shall be served and filed within fourteen days after service of the objections. Failure to file 21 objections within the specified time may waive the right to appeal the District Court’s order. 22 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 23 1991). In his objections petitioner may address whether a certificate of appealability should issue 24 in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 25 2 Petitioner is cautioned that the habeas corpus statute imposes a one-year statute of 26 limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one- year period will start to run on the date on which the state court judgment became final by the 27 conclusion of direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other 28 collateral review is pending. 28 U.S.C. § 2244(d). wOAOe 2 OU UNV VEY LOY RSE Pa Oe Ie Ye VM VI 1 | Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 2 | enters a final order adverse to the applicant). 3 | DATED: August 21, 2020. ‘ tid, PDEA 5 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28